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Archive for March, 2015

The following article has been written by Dr John Middleton, Vice President for Policy for the UK Faculty of Public Health. It has been written in response to many members’ requests for information and support when confronted with organisational changes following their transfer into local authorities. The views expressed are those of Dr Middleton and as he says in the article, the comment cannot be taken as legally watertight. FPH will not be held legally responsible for any matters arising from individuals or organisations acting on points made in this article. Many authorities may take a different view or have received different legal opinion. There is no substitute for our members being directly advised by a recognised trade union and through them, accessing expert legal opinion. FPH will not be held legally responsible for any matters arising from individuals or organisations acting on points made in this article.Some members have found this article helpful and for this reason we are now publishing it on FPH’s blog, as a companion piece to the Job Evaluation advice produced by the Public Health Medical Consultative Committee.

Public health reorganisation: employment issues observations from a former DPH on moving and reorganizing staff in a local authority. A growing number of councils are now seeking to change their public health staff that transferred from the NHS on to council terms and conditions of service (TCS). FPH is increasingly receiving concerns from our members about this. The questions tend to come in my direction because of my experiences reorganising public health in Sandwell before I retired in March 2014. I have finally managed to put this down on paper. Hopefully this will be of help to people in this painful and difficult predicament. They are my thoughts and views and not necessarily legally correct. So there is no substitute for getting your own advice and making sure you and all your staff are members of appropriate trade unions who can represent you.

What is the real legal position of public health staff following their transfer from PCTs to local authorities? There are a number of terms which feature in the law, in the status of public health staff in local authorities and in the change of employment and reorganisation processes. Among these provisions and terms are:

1. TUPE – the Transfer of Undertakings (Protection of Employment) regulations 2006. If an undertaking transfers from one employer to another, public or private, the new employer is obliged to honour the TCS of the staff who transfer with it, for as long as the staff are doing the same job.

2. Transfer order – the formal letter to local authorities from the Department of Health, on behalf of the Secretary of State, notifying them of the public health duties were described as a ‘transfer order’. It only guaranteed protection for NHS TCS until April 2015.

3. Equal value – Councils are exercised by the case law around equal value. The most well known is the case won by Birmingham city council cleaners (mainly women) that their work should be regarded as of equal value to refuse collectors (mainly men). Councils fear that other groups of their staff will bring forward claims of equal value to those of transferring public health staff and make legal claims to be put on the same value terms and conditions. Strictly speaking they could only do this if they are in the protected characteristics under the Equality Act – e.g. female or of an ethnic minority. Some councils will say it is difficult to predict where the claims might emanate from. It could be suggested that as public health is a more female oriented workforce with a higher proportion of BME workers, such claims might be less likely to succeed. Within the Equal Value considerations there is the term: a good material defence. The fact that there is a quasi-legal transfer order telling councils to take on public health staff on NHS terms provides in legal terms a ‘good material defence’ against equal value claims. But the power of this defence diminishes over time, the argument being that councils should take steps to promote equality in workforce terms and conditions. Where they know there are differences, they should take steps to eliminate these. Those equal value claims therefore could start to appear shortly after April 2015. In the case of Sandwell Council, they were quite clear that by April 2015, they wished to have this risk eliminated. The reorganisation was planned to be in place by the end of March 2014, with staff on protected TCS for a year, until April 2015. In practice there was slippage in the consultation period by 2 months, but the reorganisation went through.

A TUPE transfer or a TUPE like transfer? The Transfer Order has been described as ‘TUPE-like transfer’. The BMA (and Unite the Union) take the view that whatever the legal niceties are about the transfer order, it is a TUPE transfer. As long as staff are doing the job they were doing in the NHS TUPE applies to them, indefinitely. The other important consideration stressed by the BMA is that it is the transfer of a health service to local authorities. The same functions that were the responsibility of primary care trusts in the National Health Service are now local authority responsibilities. It is not the transfer of a public administration function, which councils can claim they can deliver in any way they choose. This could be of crucial importance should unions representing public health staff comes together to mount a legal challenge for TUPE rights to be preserved. Even under TUPE councils do have the right to make changes to TCS. But to be able to do so they must be able to demonstrate they have and economic, technical or organisational (‘ETO’) reason for doing so. It can be all or one of these:

‘Economic’ might be to make savings, but is difficult to justify given that sufficient budgets should have come over to cover existing staff through the ring fenced budget.

‘Technical’ might apply if someone says the department needs more of one kind of professional expertise and less of another.

‘Organisational’ might be changes under economic and technical or might apply if there were other council structural changes.

Consulting on reorganising If a council has an ETO justification, they have to present a new organisational structure, new job descriptions and personal specifications, have undertaken job evaluation under the NJC or Hay systems and consult staff informally and formally. Formal consultation ideally is 90 days; they can do it in 30 and pragmatically in a small department it might be 45 days, but that is not sound practice.

During the consultation all staff are placed at risk. There has to be a challenge period within the consultation in which staff has the right to present their evidence that shows that a job in the new structure is what they are doing. If they can show they are doing 70% of the new role (as a rule of thumb) it is likely to be their job and if they win their challenge they are no longer at risk and stay in the new structure on their NHS TCS. But if they are no longer at risk they cannot then apply for posts, which might be more favourable in the new structure (until all internal appointment processes have been exhausted and the posts are advertised externally).

For some very senior staff particularly it may be very difficult for a council to say they are not doing the same job. A council cannot simply overnight tell you are on council TCS, unless they are willing to risk unfair dismissal or constructive dismissal claims. One unpleasant side effect of all this is the complete demoralisation of staff who have been doing a competent job. In the consultation document, they will have seen that their posts have been deleted. They are at risk. At the end of consultation they have to apply for their new jobs, unless their challenge has been successful.

Some staff may be so dispirited they want redundancy. Again, rules of thumb are that if a post represents a 15% cut in salary it is not the same post and therefore is a redundancy discussion. To be successful in redundancy staff will also want to show the post does represent less than 70% of their old job. They may request redundancy simply to ensure they go out on NHS redundancy terms.

Other staff may make a personal judgment to take a new job, knowing they have a year’s protected salary but knowing they are not going to stick around to see it gone and looking for external posts under NHS continuity of service – PHE, CCG or increasingly, NHS England. All of these choices are painful, processes are often ugly, dilemmas and contradictions emerge, for staff and managers.

All staff has to treat each stage as a serious application for the new positions. For managers this can be difficult when you know what your members of staff are capable of but they don’t show it at internal interview. There is no obligation on the employer simply to take the at-risk people into vacant posts, or to put people into posts where they are the sole candidate. At the end of the first wave internal recruitment, any remaining vacancies have to be advertised internally, to at risk staff within the council. If there are still vacancies after this then they can go to external advert. At this point internal public health staff can have a crack at jobs that look better than the one they have taken or which they won their challenge on.

For some junior staff the reorganisation may present better opportunities – for example admin and clerical staff may have some more favourable TCS from the council, for example, more holiday. For posts below A&C 7 there may be less damage to the member of staff. AFC grades over 7 have more extended pay bandings than NJC grades so a change of terms and conditions is likely to become more detrimental. For AFC 8b upwards, staff really start to lose out. In Sandwell, the highest NJC grade J was a maximum of 49k compared to 56k for top of AFC 8B. 8C staff could only be protected if they can be moved to Hay grades. (In Sandwell, £54-67K in 2013-14.

The lessons of all this are: – You did transfer under TUPE. – So far, unions have not taken forward serious legal challenge on this. – Your council can change your terms and conditions if they change your job, but they cannot do so without an economic, technical or organisation (ETO) reason on which they must consult you. There must be a new structure, new evaluated job descriptions and personal specifications, and an opportunity to challenge. – For your own protection, for God’s sake join a union. If your representative isn’t sufficiently familiar with the work we do, ask for another representative and if necessary, a regional rep. – Your council cannot just send you a letter with altered TCS and altered salary.

Job evaluation I have also been asked to share what I know about council job evaluation schemes. It is a dark art and an esoteric operation. Hay grading seems particularly shrouded in secrecy, pay walls and heavy copyright enforcement. Which is all utterly contrary to transparency in the public sector and needs to be blown open using the Freedom of Information Act.

The job factors are assessed by job evaluators against job descriptions and personal specifications but the ‘Gauge’ questionnaire is a precise route of questions in a handbook, and the course of answering them eventually arrives at a final one beyond which the assessment of the factor goes no higher. This is called the ‘job trace’. Councils protect their job evaluators to do this work. They try to ensure their impartiality and cushion them from the influence of managers who want to big up their staff, from trade unions and staff themselves. But it is not a precise art and it is helpful for directors of public health and managers to know something about the process of job evaluation, to understand how local interpretation of job factors is done (and yes, to get new staff in at the highest possible council grades).

Hay Grading is an extremely clandestine process, there are few licensed/approved evaluators operating from Local Government Employers at regional level and in some councils. The software and even the policy and processes are jealously guarded intellectual property, behind a pay wall.

Contrary to popular perception, job evaluation in councils is not stacked towards holding big budgets and managing lots of staff. In the NJC Green Book, The Knowledge factor scores up to 163 points, double the highest score for financial business. Initiative and Influencing also scores over 100 and demonstrating influencing work beyond the council also scores highly. You must get your council to formally recognise that public health is a whole service area. This carries a specific meaning for the job evaluators. It is generally agreed in the joint staff committee but the chief executive can decide it.

I had always taken for granted that public health was a ‘whole service area’ because of the wide range of council activities we are involved with and influence. However, it carries a very specific meaning in job evaluation and job evaluators will not be able to answer key questions in the job trace favourably if PH is not seen as a whole service area.

The joint British Medical Association and Faculty of Public Health guidance on job evaluation for public health specialists seeks to dig into these issues in more depth. However, it is a world in which there is much secrecy, much that is esoteric, and much that is hidden. It is as well to get alongside your human resources colleagues and try to understand just how the process works in your local authority. Don’t let it just happen to you or your department. Even if the outcome is not what you want, it is necessary to challenge, to try to understand and to persuade and try to get the best outcome for you, your colleagues, for the council and for the people we serve.

London has a vision for health and there is some exciting work going on to address the city’s health problems. On the global stage, London is falling behind; it is ranked seven out of 1 comparable cities around the world in terms of health, wealth and education. This isn’t good enough. We have an aspiration to be the world’s healthiest major global city and must improve the lives of Londoners if we are going to be a competitive city in the future. We want London to thrive. We want to attract people to live here, grow old here and to experience a good quality of life.

PHE London welcomed the publication in October 2014 of the London Health Commission’s report Better Health for London. The Commission was chaired by Lord Ara Darzi and the resulting report made a number of recommendations to the Mayor which describe how health and health care could be transformed in London. The vision set out by the report centres on ten aspirations that could, with the engagement of key stakeholders, help galvanise action across the capital to significantly improve the health of Londoners.

PHE London was able to play a role in the work of the Commission. I led the “healthier lives, tackling health inequalities” expert group and learnt a lot during the process about Londoners, their aspirations and the tremendous insights, innovation and energy that exists in different places and ways across London. This experience has made me confident that, if taken forward in the right way, the health of Londoners can indeed be transformed.

The focus of the report on improving the health of Londoners, and the need to reduce the deep inequalities in health that are evident in the city, was particularly welcome. Aspirations to create a city where every child has the best start in life, they grow up healthy, and that adults are supported to remain in good physical and mental health, are ones shared with PHE. The aspiration to reduce the large gap in the health experience of some of the population, particularly those with severe mental health problems, also has our support.

The Mayor has now published his response to the London Health Commission and agrees that the aspirations are the right ones. He will ‘personally chair a group and prepare a unified delivery plan’ for the report (one of the recommendations), therefore continuing to act as chair for a refocused London Health Board which will oversee delivery of the report’s aspirations.

This new iteration of the London Health Board met on 12 March and had representation from key health partners in London including London Boroughs, NHS England and myself for PHE London. It will now focus on progressing improvements in health, health inequalities and making the case for the investment London needs in health and care services and the wider determinants of health. The main agenda item was defining the “next steps” that need to happen to help London achieve its ambitions. It was agreed that we have to be clear about exactly what we want to achieve and the only way we will succeed is by working collaboratively. If we share good practice and take an innovative approach, then I think we can do this.

The London Health Commission report makes wide ranging recommendations. Each are worthy of further debate and discussion regarding whether they are the right thing to do in the right way at this moment in time. PHE will play its part, bringing health intelligence and expertise to bear, while others will create policy or deliver health improvement services. However, we do recognise that in many of the areas identified we have a role to play in advocating action, helping to galvanise our collective endeavours and supporting those who do have a delivery function.

My team and I in PHE London are an asset for London; this is what we set out to do back in 2013 when PHE was formed and our purchase on this continues to grow. We are here for London and we’ll do our very best to work with anybody who wants to come forward and open new doors for us.

10 aspirations for London:

1. Give all London’s children a healthy, happy start to life.
2. Get London fitter, with better food, more exercise and healthier living.
3. Make work a healthy place to be in London.
4. Help Londoners to kick unhealthy habits.
5. Care for the most mentally ill in London so they live longer, healthier lives.
6. Enable Londoners to do more to look after themselves.
7. Ensure that every Londoner is able to see a GP when they need to at a time that suits them.
8. Create the best health and care services of any world city, throughout London and on every day.
9. Fully engage and involve Londoners in the future health of their city.
10. Put London at the centre of the global revolution in digital health.

London’s health:
• 1.2 million Londoners smoke, killing 8,000 people a year. 67 London schoolchildren start smoking every day, inspired by the adults that they see.
• Half of all adults in London – 3.8 million people – are obese or overweight. London now has more obese and overweight people than New York, Sydney, Sao Paolo, Madrid, Toronto, and Paris.
• London has the highest rate of obese or overweight schoolchildren of any peer city in the world. By the end of primary school, nearly a third of children are obese or overweight.
• Just 13% of Londoners walk or cycle to work or school. This is despite around half living close to their schools or workplaces.
• Pollution is killing 4,200 Londoners a year: 7% of deaths in the capital are directly related to poor air quality.
• London employers are losing £1.1 billion from sickness absence due to stress, anxiety and depression.
• Nearly 500,000 hospital admissions are related to excessive alcohol consumption. Problem drinking is particularly acute in a small number of London boroughs putting big strains on the NHS.

This blog is part of a series of posts to promote discussion and debate around the priorities in Start Well, Live Better: FPH’s manifesto for the 2015 General Election.

Our behaviour is more influenced by our surroundings than we think. Our behaviours are a function of what surrounds us – physically, socially and culturally, We are shaped by norms more than we shape them. Consequently, when an influential group of people have the chance to re-set norms in visible and newsworthy ways, where results benefit almost everyone both immediately and long term, why wouldn’t we seize the opportunity?

Well, health professionals and health organisations now have such a chance. The case for divesting from fossil fuel is now very strong. The British Medical Association (BMA) is committed to this journey and since its 2014 Annual Representatives Meeting (ARM) is actively investigating how best to send out a powerful message on health and social justice.

This very welcome move will hopefully start a trickle and then a tidal wave of divestment from the fossil fuel industry which, like the tobacco world, has spent outrageous sums of money on sowing doubt about the harmful effects of a high carbon world and the beneficial health and equity effects of a low carbon society. Read Oreskes book: Merchants of Doubt.

In retrospect, the data now strongly suggest that the fall in smoking levels amongst many groups did not really happen until health professionals (particularly doctors) stopped smoking. We all have bizarre habits where our creative energy is used more to justify them than to address them. If we struggle to justify our smoking habit to our peers or to ourselves, where better to reassure one’s self than by pointing to a health professional smoking.

Change does happen though, often quickly, although rarely planned (witness the banning of smoking on the London Underground). Such changes are often not driven primarily by the law (smoking on planes and overground trains). If health professionals and organisations simply all say: no, we do not invest any assets we have supporting an industry which knowingly perpetuates an addiction (to fossil fuel) and does not actively attempt to address this threat in the radical ways needed.

Fossil fuel companies need to understand that their so called wealth is largely based on resources still in the ground – which the incontrovertible evidence (supported by the UN, the World Bank; The Pentagon, the UK Ministry of Defence, and the CIA) says needs to be left there. City investors are already having doubts about the real worth of some fossil fuel companies if their so-called assets are theoretical.

We should therefore welcome the move of the BMA to be the first large health organisation to tread this path. A full description of the background to why we should actively divest from the fossil fuel industry is in MedAct’s latest report. What we will do in future might appear odd and different now, but in retrospect nearly always appears normal surprisingly quickly
We have a duty and responsibility to help shape the future as much as we are shaped by it.

The great mystery to historians at the end of the 21st century (if there is anyone left to write our history) any of us left) is why, at the beginning of the century, we did so much talking and research on what is happening and took so little action. Never in human history has the health and welfare of so many people (already living and yet to be born) depended on so few people who know so much and are doing so little. Do something good today and write a letter to the President, CEO, Chair and Treasurer of the BMA and congratulate them for at least actively and publicly committing themselves to this journey.

And ask your own organisation how much is invested in the fossil fuel industry. These are not easy questions. What constitutes a fossil fuel company? Are any savings I have ethically invested? But they are not impossible. We must not let perfection be the enemy of pragmatism and we must start today not tomorrow. This is all happening on our watch and will be our legacy.

When our great grandchildren say to us: what did you do at the beginning of the century, let us all try and do more than just mumble we that we knowingly and passively conspired with circumstance. Health professionals, rightly or wrongly, are still well respected, are numerous and interact with all members of society every day and in every community in the land.

Numbers matter: one person is a crackpot, two is a pressure group, and three is a social and political movement. If health professionals don’t draw a line in the sand, then who will? And if we don’t do it now, then when will we do it?

Disclaimer

The aim of this blog is to encourage discussion and debate on public health issues. The views expressed here are the personal views of authors, and the content does not reflect the official position of the Faculty of Public Health. However, discussion generated here may be used to influence the development of organisational policy.